Putting Your House in a Trust in Florida

Transferring a Florida home to a trust changes the legal ownership of the property from the homeowner’s individual name to the trustee’s name. The transfer is accomplished by preparing and recording a new deed with the county recorder’s office. The homeowner continues to live in and use the property as before, but the trust now holds legal title.

The type of trust determines whether this transfer provides creditor protection, estate tax benefits, or simply probate avoidance. A revocable living trust avoids probate but provides no asset protection. An irrevocable trust can provide strong creditor protection but requires the homeowner to give up direct control. The right choice depends on the homeowner’s goals and exposure to potential claims.

Revocable Living Trust

Most Florida homeowners who put their house in a trust use a revocable living trust. The homeowner creates the trust, serves as the initial trustee, and remains the primary beneficiary during their lifetime. The homeowner retains full control over the property and can revoke or amend the trust at any time.

A revocable living trust avoids probate. When the homeowner dies, the successor trustee transfers the property to the named beneficiaries without going through the probate court system. Florida’s probate process can take six months to a year and involves court fees, attorney fees, and public filings.

A revocable living trust also addresses incapacity. If the homeowner becomes unable to manage their own affairs, the successor trustee can step in to manage the property without the need for a court-appointed guardianship. The homeowner simply resigns as trustee, and the successor trustee assumes management of the home while the original homeowner remains the lifetime beneficiary.

A revocable living trust provides no creditor protection. Under Florida Statutes § 736.0505(1)(a), all assets in a revocable trust are subject to the claims of the settlor’s creditors while the settlor is alive. A judgment creditor can reach the home inside a revocable trust exactly as if the trust did not exist. For homeowners concerned about lawsuit exposure, a revocable living trust is not an asset protection tool.

Irrevocable Trust

An irrevocable trust provides creditor protection that a revocable trust cannot. When a homeowner transfers their home to an irrevocable trust created for the benefit of a spouse, children, or other family members, the homeowner no longer owns the property. The trust owns it, and the homeowner is not a beneficiary.

Florida law protects irrevocable trust assets through spendthrift provisions under § 736.0502, which prevent creditors from attaching a beneficiary’s interest in the trust.

Discretionary distribution clauses provide a separate layer of protection under § 736.0504, prohibiting creditors from compelling the trustee to make distributions. Together, these provisions make it extremely difficult for a judgment creditor to access property held inside a properly structured irrevocable trust.

The trade-off is significant. The homeowner who transfers their home to an irrevocable trust gives up direct ownership and control. The trustee manages the property according to the trust terms. The homeowner cannot unilaterally take the property back, sell it, or refinance the mortgage without the trustee’s involvement.

Irrevocable trusts are most commonly used for homes when the homeowner has meaningful creditor exposure and wants to remove the property from their personal ownership before any claim arises. The transfer must be made when the homeowner is solvent and not facing pending or threatened litigation, or the transfer may be challenged as a fraudulent transfer under Florida Statutes Chapter 726.

Homestead Exemption Considerations

Florida’s homestead exemption provides two distinct protections: a property tax reduction and constitutional creditor protection. Both protections can survive a transfer to a trust, but the rules differ.

Property Tax Exemption

A home transferred to a revocable living trust retains its property tax homestead exemption. Florida Statutes § 196.031 allows the exemption to continue when the homeowner maintains the property as their permanent residence and the trust is structured so the homeowner retains equitable title. County property appraisers routinely approve homestead exemptions for homes held in revocable trusts.

Creditor Protection

Florida’s constitutional homestead protection under Article X, § 4 shields a primary residence from forced sale by most creditors. This protection applies to the homeowner personally, not to the trust. When a home is transferred to a revocable trust, the homestead creditor protection generally continues because the homeowner is treated as the equitable owner of the property.

When a home is transferred to an irrevocable trust, the homestead creditor protection analysis changes. The homeowner no longer holds equitable title, so the constitutional homestead exemption may not apply in the same way. However, the irrevocable trust’s own creditor protections under the Florida Trust Code typically provide an independent and potentially stronger layer of protection than the homestead exemption alone.

Married Couples and Homestead

Married Florida homeowners should consider how transferring the home to a trust interacts with spousal homestead rights. Under Florida law, a surviving spouse is guaranteed at least a life estate in the homestead property, regardless of what the deceased spouse’s will provides.

For married couples, keeping the home in both spouses’ individual names as tenants by the entirety often provides sufficient protection. The home passes automatically to the surviving spouse outside of probate, and entireties ownership shields the property from the individual creditors of either spouse.

Transferring a jointly owned home to a trust changes the ownership structure and may eliminate entireties protection. For this reason, married couples may benefit from keeping their home in personal names during both spouses’ lifetimes and transferring it to a trust only after the first spouse’s death, when entireties protection is no longer available and probate avoidance becomes the primary concern.

How to Transfer the Home

The mechanical process of transferring a Florida home to a trust involves five steps.

Prepare a new deed naming the trust as the grantee. The deed must include the full legal name of the trust, the trustee’s name, the date the trust was executed, and the property’s legal description exactly as it appears on the current deed.

Choose the appropriate deed type. A warranty deed provides the greatest title protection but may require a title search. A quitclaim deed is simpler and is commonly used for transfers to the homeowner’s own trust. A lady bird deed is an alternative that retains the homestead exemption and avoids probate without transferring the property during the homeowner’s lifetime.

Sign the deed before a notary and two witnesses, as required by Florida law. Record the deed with the county recorder’s office where the property is located. Recording fees in Florida are $10 for the first page and $8.50 for each additional page.

Notify the homeowner’s insurance company and mortgage lender. The Garn-St. Germain Act (12 U.S.C. § 1701j-3) prohibits lenders from enforcing a due-on-sale clause when a homeowner transfers their primary residence to a revocable living trust in which the homeowner remains a beneficiary.

Documentary stamp tax may apply depending on the transfer. Transfers to the homeowner’s own revocable trust typically incur only the minimum documentary stamp tax of $0.70.

Cost

A standard revocable living trust in Florida costs between $1,500 and $2,500 when prepared by an attorney, including the deed preparation and recording. An irrevocable trust designed for asset protection typically costs more because of the additional drafting complexity involved in structuring spendthrift provisions, distribution standards, and trust protector powers.

The cost of not transferring the home to a trust is the potential cost of probate. Florida probate attorney fees are set by statute and can reach several thousand dollars depending on the size of the estate. For homeowners whose primary goal is probate avoidance, a trust often pays for itself by eliminating those fees.

When a Trust Is Not the Best Option

Not every Florida homeowner needs to put their house in a trust. Several situations favor alternative approaches.

A lady bird deed accomplishes probate avoidance without requiring a trust at all. The homeowner retains full control and ownership during their lifetime, and the property passes automatically to the named beneficiaries at death. A lady bird deed costs significantly less than a trust and preserves the homestead exemption without any change in ownership.

Married couples with no creditor concerns may find that tenancy by the entirety ownership provides sufficient protection and automatic transfer to the surviving spouse, making a trust unnecessary for the home alone.

Homeowners who want creditor protection beyond what a revocable trust provides should consider an irrevocable trust as part of a broader asset protection plan rather than as a standalone measure. The home is only one component of an overall estate, and protecting it in isolation may not address the homeowner’s full exposure.